We are fielding a lot of questions from clients who are unsure of what their obligations and rights are
as employers, so we have put together a short summary about the most common questions we are
receiving in relation to leave and stand-downs. We will continue to provide further information over the coming days on other areas of interest to employers including health and safety in the workplace,
working from home and redundancies.
Note that all of the information below is general in nature, and may be impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
Leave for Illness
As is the case with any other sickness, full-time and part-time employees who are sick with coronavirus (or sick, and are unsure if they have coronavirus) and therefore cannot come to work, can take paid sick leave. If an employee needs to look after a family member who is sick with coronavirus, they’re entitled to take paid carer’s leave. If they have run out of paid personal leave then the rest of the period of the leave will be unpaid (although they may ask to be paid annual leave if they have annual leave available).
Leave for Quarantine and Self Isolation
The answer as to leave available for an employee depends on who has directed them to
If an employer directs a full time or part-time employee to stay home, and the employee isn’t sick, the employee should ordinarily be paid. You could, however, have your employee undertake remote work during this period.
If any employee cannot work due to a government direction an enforceable government direction requiring them to self-quarantine, the employee isn’t ordinarily entitled to be paid (unless they use other leave entitlements). In this case, their inability to work is because of an enforceable government direction, not because of their employer.
If an employee cannot work due to travel restrictions (for example, they are stuck overseas), they’re not entitled to be paid (unless they use paid leave entitlements).
In all of these situations, an employer may wish to offer remote work as an alternative.
The Fair Work Act provides that employers have a right to stand down employees in certain circumstances. Modern awards, enterprise agreements or employment contracts may also contain stand down provisions and generally, such periods are unpaid.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
It is important to understand that employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.
And if an employer is not the subject of a stoppage of work, standing down its employees could be deemed unlawful (and consequently the employer might be in the position where it is pursued to back pay wages over that period, even though the employees weren’t working). So it is extremely important to get this right.
Whether the option of standing down employees is available depends on the employer being able to
- there is a stoppage of work
- the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs)
- the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for
Some examples of when employers may be able to stand down employees include:
- if there was an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location)
- if a large proportion of the workforce was required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed
- if there was a stoppage of work due to lack of supply for which the employer could not be held responsible (although once again, note that this is not triggered by just a deterioration of business conditions).
Stand downs are an area of particular interest at the moment, so we have put together further
information on this that you can access here, looking at some examples: COVID19 and Standing Down
In future issues, we will be looking at other employment issues such as
- Health and safety in the workplace
- Working from home
We will also be looking at leases, recent changes to insolvency laws, strengthening your supply chain, M&A activity, contract termination and other contractual issues. So stay tuned for our further updates. And as always, contact our legal team if you have any questions in relation to any of these areas, or other legal questions that are arising. We have a legal team experienced in all of these areas. Just reply to this email and we will organise a time for one of our legal eagles to get in contact.
Don’t hesitate to contact our legal team if you have any questions in relation to stand downs or any other legal questions that are arising. Our legal team is highly experienced in all of these areas, and are ready to help.
Other relevant articles:
- Coronavirus: Implications on commercial contracts and force majeure clauses
- COVID19 and Hurdles to Stand Downs
- Coronavirus: Workplace Health and Safety Considerations
- Coronavirus: Working From Home Considerations
Relevant Podcast Episode:
Disclaimer: The material contained on this website is provided for general information purposes only and does not constitute legal advice. You should not depend upon any information appearing on this website without seeking legal advice. We do not guarantee that the contents of this website will be accurate, complete or up-to-date. Liability limited by a scheme approved under Professional Standards Legislation